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State v. Torres

Supreme Court of Montana

July 18, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
FRANCO LEO TORRES, Defendant and Appellant.

          Submitted on Briefs: May 24, 2017

         APPEAL FROM District Court of the First Judicial District, In and For the County of Lewis And Clark, Cause No. CDC 2008-211 Honorable Kathy Seeley, Presiding Judge

          For Appellant Chad Wright, Chief Appellate Defender, Moses Okeyo, Assistant Appellate Defender, Helena, Montana

          For Appellee Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant Attorney General, Helena, Montana

          Leo Gallagher, Lewis and Clark County Attorney, Helena, Montana

          OPINION

          JIM RICE JUSTICE.

         ¶1 Appellant, Franco Leo Torres (Torres), appeals the orders of the First Judicial District Court, Lewis and Clark County, which denied his motion to set aside a prior felony conviction, and revoked his suspended sentence. We affirm and restate the issue as follows:

         ¶2 Did the District Court err by revoking Torres' suspended sentence?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 In 2008, Torres pled guilty to felony Partner or Family Member Assault (PFMA) and received a three-year deferred sentence. In January 2009, Torres' sentence was revoked and he was sentenced to the Department of Corrections (DOC) for five years, with two years suspended. After serving three years, Torres was released in January 2012 to serve the suspended portion of his sentence.

         ¶4 In August 2013, while serving his suspended sentence, Torres was arrested for felony PFMA in Yellowstone County. Citing this charge and alleging other probation violations, the Lewis and Clark County Attorney's Office filed a second petition for revocation of Torres' sentence. Torres denied the allegations of the petition and filed a motion to set aside his 2008 PFMA conviction, arguing the pre-2013 PFMA statute was unconstitutional as violating the equal protection provisions of the Montana and United States Constitutions. The District Court denied Torres' motion to set aside his previous conviction, and Torres admitted to the violations set forth in the petition to revoke. He received a two-year sentence to the DOC, which was ordered to run concurrently with the sentence imposed by the Yellowstone County District Court for Torres' 2013 PFMA.

         ¶5 Torres appeals the District Court's denial of his motion to set aside the 2008 PFMA conviction and revocation of his suspended sentence.

         STANDARD OF REVIEW

         ¶6 We review a district court's revocation of a suspended sentence for abuse of discretion and to determine whether the court's decision was supported by a preponderance of the evidence. State v. Muhammad, 2002 MT 47, ¶ 17, 301 Mont. 1, 43 P.3d 318; State v. Adams, 2013 MT 189, ¶ 11, 371 Mont. 23, 305 P.3d 808. Further, we review a district court's conclusions of law for correctness. In re M.W., 2012 ...


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